- New contractor after SPC is not ‘successor’ for re-engagement purposes (Dafiaghor-Olomu v (1) Community Integrated Care (2) Cornerstone Community Care)
- Original news
- What is the impact of this case?
- What is the relevant law?
- What were the background facts?
- What did the employment tribunal decide?
- What did the Employment Appeal Tribunal decide?
- Case details
Employment analysis: Under section 116 of the Employment Rights Act 1996 (ERA 1996), following a finding of unfair dismissal, an employment tribunal can order that an employee should be re-engaged by an employer or a successor employer. Section 235 of the ERA 1996 defines a ‘successor’ employer generally as a person who has become the owner of an undertaking, in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking, for the purposes of which the employee was employed. The requirement that there be a ‘change in the ownership of the undertaking’ is not to be interpreted as being coextensive with a relevant transfer under TUPE 2006 or as including all situations where TUPE 2006 applies, including a service provision change. Therefore, where an employer has been found to have unfairly dismissed an employee but the relevant activities are now carried out by a new contractor following a service provision change, an employment tribunal is not required to consider making a re-engagement order against that new contractor, according to the EAT.
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